The Evidence Act, 2011 (as amended by the Evidence (Amendment) Act, 2023) is one of the most important statutes governing litigation and the admissibility, relevance, presentation and evaluation of evidence in Nigerian courts.

Whether a case concerns a contract, land, employment, criminal prosecution, election, commercial dispute, family matter or constitutional claim, the success of the case will often depend not only on the facts available to the parties, but on whether those facts can be proved by legally admissible evidence.

The Evidence Act 2011 repealed the former Evidence Act, Cap. E14, Laws of the Federation of Nigeria 2004, and applies to judicial proceedings in or before courts in Nigeria. It commenced on 3 June 2011.

The Act was subsequently amended by the Evidence (Amendment) Act, 2023, which introduced important provisions dealing particularly with electronic records and modern methods of proving electronically stored information. The amendment was assented to and commenced on 12 June 2023.

1. Evidence must be relevant to the facts in issue

The starting point of the Evidence Act is relevance.

Section 1 establishes the general principle that evidence may be given of facts in issue and of other facts declared relevant by the Act, and not of facts that are irrelevant.

In practical terms, a party cannot simply place every piece of information before the court. The evidence must relate to a fact that is legally relevant to the issues the court is required to determine.

This makes the identification of the issues for determination critically important.

A lawyer preparing a case should therefore ask:

• What facts must I prove?
• Which facts are admitted?
• Which facts are disputed?
• What evidence establishes each disputed fact?
• Is the proposed evidence relevant and admissible?

2. Relevant evidence is not necessarily admissible evidence

One of the most important distinctions in evidence law is the difference between relevance and admissibility.

Evidence may appear relevant but still be excluded because the Evidence Act or another applicable law makes it inadmissible.

Thus, the proper question is not merely:

“Is this evidence relevant?”

It is also:

“Is this evidence legally admissible?”

The distinction is particularly important in relation to hearsay, documentary evidence, electronic evidence, confessional statements, privileged communications and evidence obtained in particular circumstances.

3. Hearsay evidence is generally inadmissible

Section 37 defines hearsay evidence, while section 38 provides the general rule against its admissibility, subject to the exceptions recognised by law.

The basic problem with hearsay is that the person who made the statement is not before the court to testify directly and be subjected to cross-examination.

The courts continue to treat hearsay as generally inadmissible where it is tendered to establish the truth of the matter stated. A recent National Industrial Court decision, for example, restated the operation of sections 37 and 38 and explained the distinction between proving the truth of a statement and proving merely that the statement was made.

Example

If A tells B:

“C admitted that he stole the money.”

and B gives evidence of that statement to prove that C actually stole the money, the evidence may raise a hearsay problem.

However, whether a statement constitutes hearsay depends on the purpose for which it is being tendered and the applicable statutory exception.

4. Oral evidence should generally be direct

Section 126 provides the general rule that oral evidence must be direct.

Where the evidence concerns something that could be seen, the witness should ordinarily be someone who saw it.

Where it concerns something heard, the witness should ordinarily be someone who heard it.

Where it concerns something perceived through another sense, the witness should ordinarily be someone who perceived it in that manner.

This rule is closely connected with the prohibition against hearsay.

The court ordinarily wants evidence from the person who actually perceived the relevant event rather than someone who merely heard about it from another person.

5. Documentary evidence has special rules

Documents frequently provide the foundation of Nigerian civil and commercial litigation.

Contracts, receipts, bank statements, letters, agreements, company records, government documents, photographs and electronic records may all become important documentary evidence.

However, simply possessing a document does not automatically make it admissible.

Questions may arise concerning:

• relevance;
• authenticity;
• proper foundation;
• primary and secondary evidence;
• certification;
• electronic evidence requirements;
• whether the document is hearsay;
• whether the document is privileged; and
• whether another law imposes additional requirements.

A lawyer should therefore consider the statutory basis for admissibility before tendering an important document.

6. Electronic evidence is expressly recognised by Nigerian evidence law

One of the most important developments in Nigerian evidence law is the statutory recognition of computer-generated and electronic evidence.

Section 84 of the Evidence Act deals with statements contained in documents produced by computers.

The Evidence (Amendment) Act, 2023 expanded section 84 by expressly referring to electronic records and inserted new sections 84A–84D.

This is highly significant in modern litigation because evidence increasingly exists in electronic form.

Examples include:

• emails;
• WhatsApp messages;
• SMS;
• electronic contracts;
• computer printouts;
• bank records;
• CCTV recordings;
• photographs;
• digital audio;
• electronic databases;
• cloud-stored information; and
• other electronically generated records.

7. Section 84 is central to computer-generated evidence

Section 84 establishes conditions governing the admissibility of statements contained in computer-produced documents and electronic records.

Among the matters addressed are whether the computer was regularly used to store or process information, whether information of the relevant kind was regularly supplied in the ordinary course of the activities, whether the computer was operating properly, and whether the information in the record was derived from information supplied in the ordinary course.

The 2023 amendment expanded the provision to accommodate electronic records.

This makes section 84 one of the most important provisions in contemporary Nigerian litigation.

NLC provides the full text of section 84 for researchers:

Read Section 84 of the Evidence Act on Nigerian LawCompass

8. Section 84A recognises information in electronic form

The 2023 amendment introduced section 84A.

It provides, in substance, that where a law requires information or another matter to be in writing or in typed or printed form, that requirement may be satisfied where the information is:

1. rendered or made available electronically; and
2. accessible so that it can be used for subsequent reference.

This provision reflects the reality that modern transactions and records increasingly exist electronically.

9. Section 84B deals with electronic records stored in different media

Section 84B addresses information contained in electronic records that may be printed on paper or stored, recorded or copied on optical or magnetic media, cloud computing systems or databases.

Subject to the statutory conditions, such information may qualify as a document and may be admissible without requiring production of the original in the conventional sense.

This provision is particularly relevant to modern banking, telecommunications, corporate, commercial and technology disputes.

10. The burden of proof generally follows the person asserting the fact

Sections 131 and 132 establish important principles concerning the burden of proof.

Section 131 essentially embodies the familiar principle that a person who desires the court to give judgment based on facts asserted by that person must prove those facts.

Section 132 provides that the burden lies on the person who would fail if no evidence were given by either side.

In practical terms:

The person who asserts a fact ordinarily bears the burden of proving it.

This principle is fundamental to pleadings, trial strategy and the evaluation of evidence.

11. The burden of proof can shift during a civil case

The burden of proof is not necessarily static throughout a case.

Section 133 addresses the burden of proof in civil cases and explains how the burden may move from one party to another after sufficient evidence has been produced.

The basic idea is that once a party has produced evidence sufficient to establish the relevant fact, the evidential burden may move to the opposing party.

The Supreme Court and other superior courts have repeatedly considered the operation of these provisions. Recent judicial decisions continue to apply sections 131–134 in determining which party carries the evidential burden.

12. Civil cases are generally proved on the balance of probabilities

Section 134 provides that the burden of proof in civil proceedings is discharged on the balance of probabilities.

The expression is often explained as requiring the court to determine which version of the evidence is more probable.

It does not mean that a party must prove its case with absolute certainty.

A civil claim therefore generally succeeds where the evidence establishes the relevant facts on the balance of probabilities, subject to any different standard imposed by law.

13. Criminal allegations require proof beyond reasonable doubt

Where the commission of a crime is directly in issue, section 135 requires proof beyond reasonable doubt.

The provision places the burden of proving the alleged crime on the person who asserts it, subject to the statutory provisions dealing with the burden of proof.

The Supreme Court has repeatedly emphasised that proof beyond reasonable doubt does not mean proof beyond every conceivable doubt.

It requires evidence sufficiently compelling to establish guilt to the required criminal standard.

This distinction between the civil and criminal standards of proof is fundamental.

Civil case

Balance of probabilities

Criminal case

Beyond reasonable doubt

14. Expert opinion may be admissible where specialised knowledge is required

The Evidence Act recognises situations in which the court may receive expert opinion.

Expert evidence can become important where the court has to determine matters involving specialised knowledge, including areas such as:

• science;
• medicine;
• handwriting;
• fingerprints;
• technology;
• foreign law;
• customary law; and
• other specialised fields recognised by the Act.

The important point is that an expert does not simply replace the court’s function. Expert evidence assists the court in understanding matters that fall outside ordinary knowledge.

15. Character evidence is subject to important restrictions

Character evidence is not automatically admissible simply because it may appear relevant.

The Evidence Act contains specific provisions governing when character may be relevant, particularly in criminal proceedings.

For example, evidence of an accused person’s good character may be relevant in criminal proceedings, while evidence of bad character is generally restricted except in circumstances recognised by the Act.

The Act therefore requires careful consideration before character evidence is introduced.

16. The court may take judicial notice of certain facts

Section 74 identifies facts of which the court shall take judicial notice.

These include certain laws and enactments, subsidiary legislation and other matters specified by the Act.

Where a matter falls within judicial notice, it does not have to be established through ordinary evidentiary proof in the same manner as a disputed fact.

This is one reason lawyers must distinguish between:

• facts that require proof;
• facts admitted by the parties; and
• facts of which the court is required or permitted to take judicial notice.

17. Facts admitted by the parties generally need not be proved

Section 75 provides an important rule concerning admissions in civil proceedings.

Where parties or their agents agree to admit a fact at the hearing, or agree in writing before the hearing, the fact generally does not require further proof, subject to the court’s discretion to require proof where appropriate.

This makes admissions extremely important in pleadings and trial preparation.

A lawyer should therefore pay close attention to:

• statements of claim;
• statements of defence;
• replies;
• notices to admit;
• written admissions; and
• admissions made during proceedings.

18. Confessional statements require careful treatment

A confession can be extremely powerful evidence in a criminal trial.

However, the mere existence of a statement allegedly made by an accused person does not end the inquiry.

Questions may arise concerning:

• whether the accused actually made the statement;
• whether it was voluntary;
• whether it was properly obtained;
• whether its contents are reliable;
• whether there is corroborative evidence; and
• whether the statement is admissible under the applicable law.

The court must ultimately evaluate the evidence in accordance with the Evidence Act and applicable criminal procedure law.

19. Presumptions can affect the burden of evidence

The Evidence Act contains provisions dealing with presumptions.

Section 145 distinguishes between circumstances in which the court may presume a fact and circumstances in which the court shall presume a fact.

Section 167 also identifies facts that the court may presume from the circumstances of a case. One example concerns a person found in possession of stolen goods soon after the theft, subject to the person’s ability to account for the possession.

Presumptions can therefore significantly affect the evidential burden in a case.

They should not, however, be confused with automatic proof of every allegation.

20. The admissibility of evidence is ultimately determined by the court

The final and perhaps most important lesson is that evidence is not admissible merely because a party considers it important.

The court must determine admissibility according to the Evidence Act and other applicable laws.

The lawyer’s task is therefore to establish:

1. what fact is to be proved;
2. why the fact is relevant;
3. what type of evidence proves it;
4. whether that evidence is admissible;
5. whether any statutory foundation is required;
6. whether the evidence has been properly authenticated;
7. whether an objection may properly be raised; and
8. what weight the court should ultimately attach to the evidence.

This distinction between admissibility and weight is fundamental.

A piece of evidence may be admissible but ultimately given little weight. Conversely, evidence that is highly persuasive may nevertheless be excluded if it does not satisfy the applicable rules of admissibility.

Key Evidence Act Sections Every Nigerian Lawyer Should Know

For quick reference, the following provisions deserve particular attention:

The 2023 amendment particularly affects the electronic-evidence framework, including sections 84 and 84A–84D, and also amended other provisions of the Act.

Evidence Act 2011: What Lawyers Should Remember

The Evidence Act should not be approached merely as a statute to consult when an objection is raised during trial.

It should inform case preparation from the beginning.

Before commencing or defending a case, counsel should consider:

• the facts that must be established;
• the burden of proof;
• the applicable standard of proof;
• the witnesses available;
• the documents available;
• the possibility of hearsay objections;
• the requirements for electronic evidence;
• the need for certification or authentication;
• possible presumptions;
• admissions made in pleadings; and
• the authorities interpreting the relevant provisions.

In particular, the increasing importance of electronic evidence means that lawyers should become familiar with sections 84 and 84A–84D, rather than relying exclusively on traditional documentary-evidence principles. The 2023 amendment was specifically designed to bring the Evidence Act into closer alignment with technological developments in evidence-taking.

Research the Evidence Act on Nigerian LawCompass

The Evidence Act becomes much more useful when read together with the judicial authorities interpreting its provisions.

On Nigerian LawCompass, researchers can move from the statutory provision to the relevant judgments and legal principles.

Start your research with:

• Evidence Act, 2011
• Evidence (Amendment) Act, 2023
• Section 84 — Electronic Evidence
• Section 134 — Standard of Proof in Civil Cases
• Section 135 — Proof Beyond Reasonable Doubt
• Relevant Supreme Court and Court of Appeal authorities

Nigerian LawCompass — Intelligent Research. Decisive Law.

Disclaimer: This article is published by Nigerian LawCompass for general information and educational purposes only. It is not legal advice and should not be relied upon as a substitute for advice from a qualified legal practitioner. The law may change, and the application of any statutory provision depends on the facts and circumstances of each case. Readers should consult the current legislation, applicable court rules and relevant judicial authorities before relying on any legal proposition.